People v. Kiger CA4/2

STATEMENT OF THE CASE

In 2020, defendant was found guilty of domestic battery with a prior (§ 273.5,

subd. (f)(1); count 1) and assault by means of force likely to cause great bodily injury

(§ 245, subd. (a)(4), count 2), each with a domestic violence great bodily injury

enhancement (§ 12022.7, subd. (e)). One “strike” prior (§§ 667, subds. (b)-(i), 1170.12)

and one prior serious felony conviction enhancement (§ 667, subd. (a)) were found true.

Defendant was sentenced to a total of 16 years in prison, including eight years (double

the midterm) on count 1.

He appealed. We held that there was insufficient evidence of domestic battery

with a prior because his only relevant prior conviction was for an attempt, not for a

completed crime. (People v. Kiger (2022) 76 Cal.App.5th 1147, 1150-1152.) We

reduced the conviction on count 1 to simple domestic battery (§ 273.5, subd. (a)) and

remanded for resentencing. (People v. Kiger, supra, at pp. 1152-1153.)

3 The resentencing hearing was held before a different judge,2 and defendant had

different appointed counsel. Defendant was not present. His counsel stated: “Since his

sentence is being reduced, I would waive his…